2023-Sep-17 Paul Marshall : `THE HARM THAT JUDGES DO – THE POST OFFICE INQUIRY AND LEE CASTLETON’S STORY
It is a melancholy fact that judges often inflict serious avoidable harm on individuals, unaccountably, as shown by the hundreds of those wrongly convicted of offences of dishonesty in what is now dubbed ‘the Post Office scandal’. The response is that the courts were misled by the Post Office. But courts ought not to be misled, and where misled, in the same way, repeatedly over many years, with catastrophic consequences for the lives and livelihoods of hundreds affected, the question as to why demands an answer.
The Post Office scandal is as much a legal scandal as it is a Post Office scandal. The entire legal system failed. The inescapable conclusion from the unprecedented number of false convictions, is that hundreds of judges up and down the country, over a period of more than 14y, had not the slightest idea of what they were looking at when it came to computer records relied upon as evidence of ‘missing money’. That should be a matter of acute concern for the public and for the legal profession. But confronting institutional failure is unappetising and tends only to elicit inertia and the British tendency to muddle through – ‘lessons have been learned’, code for they have not.
Judge Richard Havery Q.C. by his High Court civil judgment in 2007 almost destroyed Lee Castleton’s family – his daughter almost died from Anorexia Nervosa and shame and humiliation. Lee was made bankrupt for 14 years on a costs order the judge made against him for £321,000 on judgment for a claim for £26,000. Almost every aspect of Havery’s judgment, both as a matter of fact and law, is wrong. He accepted, from a position of ignorance, more or less anything he was told by the Post Office and Fujitsu (Castleton was unrepresented). He plainly didn’t understand the evidence he was dealing with – like so many other judges who routinely imprisoned innocent people on incomplete and misleading Post Office evidence. The key to Peter Fraser’s later seminal and masterly “Horizon Issues” judgment in 2019 was the Known Error Log maintained from 1999 by Fujitsu. It was not disclosed in legal proceedings by the Post Office until the 2019 group litigation. Anyone with the slightest knowledge of IT systems knows that KELs are kept for all maintained systems. Its eventual disclosure revealed tens of thousands of error records, bugs and their effects, and system fixes.
As the Post Office Inquiry approaches its consideration of Lee Castleton’s civil trial this week, some might find it helpful to read an essay I wrote a long time ago “The harm that judges do – misunderstanding computer evidence: Mr Castleton’s story “an affront to the public conscience””. The essay was published in 2020 by the School of Advanced Study, London University, long before the Court of Appeal judgment of April 2021 - or Clarke.`
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